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Tag: Infant Adoption

Infant Adoption

The Guts to Become a Parent During COVID

Becoming a parent during the Covid-19 pandemic takes guts. No wonder the U.S. birth rate is the lowest it’s been in over a century! Those committing to become parents through adoption and assisted reproduction have inspired me for over thirty years, but they have truly been my heroes during the past eighteen months.

Some I have met only via video conference, yet the intensity of our work on their adoption journey makes it seem impossible that we have not been in the same room together. I finally “met” the adorable babies on my computer screen at final adoption hearings before courts in New York and New Jersey held virtually. My desktop even crashed last month and I needed to replace it – talk about pandemic fatigue!

Some, like LGBTQ parents, are particularly vulnerable, a vulnerability which the pandemic exacerbated. In one of the most tumultuous adoptions of the Covid era, steadfast hopeful adoptive dads, who had already been through a failed adoption, received a text from their birth mother containing a photo of a newborn baby and claiming an unplanned home birth. Two tortuous days later, during which we did not know whether this was a scam, the birth mother finally took the baby to the hospital, and he is where he belongs – in his adoring dads’ arms. Phew!

Some bravely became parents using assisted reproduction. My lesbian clients used reciprocal IVF for their pregnancy. They created an embryo with the ova of one of them and donor sperm, which was transferred to the other, who gave birth to their child. Under an exemplary, forward-thinking New York statute which was only enacted in February 2021, the Child Parent Security Act, I filed a proceeding for an Order of Parentage, declaring my clients both as the legal parents of the child. In (what else) a virtual hearing before the New York court a couple of weeks ago, the judge entered the Order of Parentage, declaring: “This is only my second hearing under the new statute and I am moved to be able to recognize you as the parents of your child.”

I look forward to the day that the pandemic is behind us, but until then, guts, resilience, and strength will trump the hardships of those becoming parents through adoption and assisted reproduction during Covid.

–Robin Fleischner is a AAAA Fellow practicing adoption and ART law in New York. Learn more about her practice on her website, www.adoptsurrogatelaw.com.

Policymakers Asked To Exclude Expecting Parents From COVID-19 Travel Ban

Men Having Babies, in collaboration with a number of organizations including AAAA, Resolve, and ASRM has issued a letter to policymakers asking for help to adjust current regulations to allow prospective parents from all over the world to travel to the U.S. to be with their newborn child. Click here to read the full body of the letter.

COVID-19 and The US State Department Closure of Passport Agencies

The shut down of regional passport issuing offices, and the directives to only issue passports in life or death situations, is creating very concerning delays for parents coming to the US and hoping to return home with their newborns as soon as possible. AAAA sent the attached letter to Secretary of State Pompeo and to the DOS, Bureau of Consular Affairs, expressing our concern. In part, the letter notes lack of health care for newborns and parents who linger in the States, travel visas expiring, and lack of adequate long-term shelter in which to care for a newborn as some of the top issues of concern due to the shut-down. To read the complete letter, click here.

ICWA is not meeting the needs of Indian Children

In October, 2018, the United States District Court for the Northern District of Texas, in Brackeen v. Zinke, held that the Indian Child Welfare Act (“ICWA”) and the Bureau of Indian Affairs regulations implementing it violate the U.S. Constitution, largely on equal protection and 10th Amendment grounds. The United States Court of Appeals for the Fifth Circuit has stayed that ruling pending appeal. Oral arguments are scheduled for March.

Given the high profile of this case, it has attracted significant media attention. Recognizing the controversy the Texas decision has created, the Academy of Adoption and Assisted Reproduction Attorneys (“AAAA”) trustees carefully considered the issues, particularly the best interests of children, and has taken a position supporting the plaintiffs in that litigation.

Importantly, AAAA has taken positions in the past that supported a best interests application of equal protection principles to Indian children. In Adoptive Couple v. Baby Girl, the Academy supported the rights of the birth mother to make a placement decision over the efforts of the father of the child to disrupt the adoption. The father asserted his rights based solely on race, but he had abandoned the child under South Carolina law. In Lexi P,  AAAA an amicus brief asking the United States Supreme Court to accept certiorari and hold that equal protection requires Indian children have the right to have their best interests heard on the same terms as other children. AAAA has supported arguments in other cases involving Indian children where it was believed the ICWA was being applied in a manner inconsistent with the best interests of children.

A few years ago, when commenting on the proposed BIA regulations AAAA opposed the proposed regulations, supported the application of equal protection to Indian children, and made many arguments based on the best interests of Indian children. AAAA also argued, as decided by the federal court in Brackeen, that the BIA lacked authority to adopt the proposed regulations due to 10th Amendment and other concerns. Those efforts were successful in persuading BIA to adopt regulations that are a less dramatic departure from the language of the ICWA than were proposed.

The Texas decision, therefore, is consistent with prior positions adopted by AAAA concerning the ICWA. AAAA also supports that decision, primarily because the ICWA is not working as it is presently enacted.

The ICWA was enacted to help reduce out of home placements of American Indian children. The overrepresentation of American Indian children in foster care, however, has not changed or improved, and American Indian children are disproportionately represented in the foster care systems of states where there is a higher population of American Indian children.

While AAAA supports the Texas decision, it has always supported and continues to support the goals for which ICWA was adopted. The ICWA, however, is not meeting those goals and often is applied inconsistent with the best interests of the children involved. AAAA would welcome the opportunity for a seat at the table to discuss how the goals of the ICWA may better be achieved through other means.

— Larry Jenkins is a Fellow of the Academy of Adoption and Assisted Reproduction Attorneys.

DISCLAIMER: The Academy of Adoption and Assisted Reproduction Attorneys (AAAA) website is designed for general information only. Nothing on this website establishes an attorney-client relationship with AAAA or any of its member-attorneys.  AAAA website content does not constitute legal advice from AAAA or its member-attorneys to any reader or to the general public.  The law constantly changes and varies across state and international borders.  Consult qualified legal counsel in your jurisdiction regarding your particular situation. Click here for the AAAA Attorney Directory. The names and contact information included on this site are for the purpose of searching for an attorney for a particular legal case. The contact information may not be used for commercial, promotional, or advertising purposes.

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